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ARGUMENT 


COLEMAN  AVERY 

BEFORE  THE 

SUPREME  COURT  OF  OHIO 

ON  JANUARY  lfi,  1913, 

IN  CASE  OF 


STATE  OF  OHIO  vs.  GEORGE  B.  COX. 


ARGUMENT  OF  COLEMAN  AVERY  BEFORE  THE 
SUPREME  COURT  OF  OHIO  ON  JANUARY 
16,  1913,  IN  CASE  OF  STATE  OF 
OHIO  vs.  GEORGE  B.  COX. 


If  the  Court  please:  This  case  is  here,  under  leave 
previously  granted  by  this  court,  on  a  hill  of  exceptions 
of  the  Prosecuting  Attorney  of  Hamilton  County  to  a 
decision  of  the  Court  of  Common  Pleas  of  Hamilton 
County. 

The  question  presented  is  whether  the  court  of  Com¬ 
mon  Pleas  erred,  as  a  matter  of  law,  in  granting  a  motion 
to  quash  an  indictment  for  perjury  against  George  B. 
Cox,  for  certain  testimony  given  by  him  before  a  grand 
jury  in  1906,  on  the  ground  that  in  the  inquiry  then  made 
before  that  grand  jury  his  constitutional  rights  were 
violated  in  that  he  was  compelled  in  a  criminal  case  to  be 
a  witness  against  himself. 

In  1911  the  grand  jury  returned  an  indictment  against 
George  B.  Cox.  The  indictment  charged  in  substance 
that  George  B.  Cox  was  in  1906  subpoenaed  to  appear  as 
a  witness  before  a  grand  jury  regularly  impaneled  and 
sworn  and  then  in  session  in  Hamilton  County;  that  he 
appeared  in  response  to  the  subpoena  and  was  then  and 
there  duly  sworn  by  the  clerk  of  the  court,  truly  to  testify 
as  a  witness  before  said  grand  jury;  and  that  he,  so  duly 
sworn,  did  then  and  there  apppear  before  said  grand  jury 
and  in  a  certain  proceeding  before  said  grand  jury  and  in 
a  certain  matter  in  relation  to  which  an  oath  was  author¬ 
ized  by  law,  that  is  to  say,  in  the  proceeding  and  matter 
wherein  the  grand  jury  was  then  and  there  inquiring  of 
the  unlawful  deposit  in  banks  within  the  County  of 
Hamilton  of  moneys  received  in  payment  of  taxes  by  the 


—  2  — 


then  treasurer  of  Hamilton  County  and  his  predecessors 
in  office,  and  the  aiding,  abetting  and  procuring  by  other 
persons  in  said  Hamilton  County  of  said  treasurers  to 
make  said  unlawful  deposits,  did  then  and  there  and  in  a 
matter  material  to  the  inquiry  then  being  made  therein 
testify  as  follows:  That  he  knew  nothing  about  the 
deposits  of  said  moneys  in  the  Cincinnati  Trust  Com¬ 
pany  of  which  he  was  president;  that  he  had  not  been 
consulted  about  it,  and  had  nothing  to  do  with  it;  that 
he  knew  nothing  about  the  deposit  of  county  funds  with 
banks  of  Hamilton  County  during  the  terms  of  Tilden 
R.  French,  Leo  Schott,  Rudolph  K.  Hynicka  and  John 
H.  Gibson  as  treasurers  of  Hamilton  County;  that  he  did 
not  know  what  interest  they  got,  or  what  arrangements 
they  made  as  to  interest,  and  that  he  himself  had  never 
received,  either  directly  or  indirectly,  any  part  of  the 
interest  or  gratuities  which  the  treasurers  got  as  a  re¬ 
sult  of  said  deposits ;  which  testimony  was  wilfully  false 
and  corrupt,  for  in  truth  and  in  fact  he  had  been  con¬ 
sulted,  and  well  knew  and  took  part  in  the  arrangements 
made,  in  regard  to  deposits  of  moneys  paid  to  treasurers 
of  Hamilton  County  as  taxes  in  the  Cincinnati  Trust 
Company;  and  in  truth  and  in  fact  he  knew  that  for 
years  the  banks  had  been  receiving  deposits  from  the 
treasurers  of  Hamilton  County;  and  in  truth  and  in  fact 
he  knew  that  Tilden  R.  French,  Leo  Schott,  Rudolph  K. 
Hynicka  and  John  JI.  Gibson,  wlien  treasurers  of  Hamil¬ 
ton  County,  had  deposited  the  county  funds  with  the 
banks  of  Hamilton  County  and  that  said  banks  had  paid 
interest  thereon,  and  that  he  himself  had  received  a  large 
part  of  the  interest  so  paid,  which  he  knew  was  paid  as  in¬ 
terest  on  the  deposits,  under  arrangements  which  he  well 
knew  as  aforesaid;  which  said  matters  so  testified  to  be¬ 
fore  the  grand  jury  were  then  and  there  material  matters 


—  3  — 


in  the  inquiry  then  being  made  by  said  grand  jury  and 
which  said  matters  so  then  testified  by  said  George  B. 
Cox  to  be  true,  he,  said  George  B.  Cox,  then  and  there 
knew  to  be  false,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided  and  against  the  peace  and 
dignity  of  the  State  of  Ohio. 

To  this  indictment  the  accused  filed  a  motion  to  quash, 
only  three  of  the  ten  specific  grounds  of  which  were 
properly  included  in  or  to  be  considered  on  a  motion  to 
quash,  according  to  the  rules  of  criminal  pleading  and 
practice,  to-wit:  the  fourth,  sixth  and  seventh,  which 
were  as  follows: 

“4.  The  allegation  as  to  the  proceeding  and  matter  pending 
before  said  grand  jury  is  indefinite  and  misleading.” 

‘‘6.  Said  indictment  charges  in  one  count  several  separate 
and  distinct  alleged  offenses,  and  is  bad  for  duplicity.” 

”7.  That  the  averments  in  said  indictment  as  to  the  form  of 
the  same  and  the  manner  in  which  said  offense  is  charged  are  so 
vague,  indefinite,  uncertain  and  misleading  that  the  defendant 
is  not  properly  informed  of  the  charge  against  him,  or  what  he 
shall  meet  at  the  trial,  and  can  not  prepare  his  defense.” 

But  the  Court  of  Common  Pleas  on  May  20th,  1911, 
Hon.  William  L.  Dickson  presiding,  rendered  a  decision 
granting  the  motion  to  quash  on  the  tenth  ground  thereof, 
which  was  as  follows: 

”10.  Because  it  appears  by  said  indictment,  that  the  investi¬ 
gation  which  the  grand  jury  had  under  consideration  at  the  time 
the  defendant  is  alleged  to  have  committed  perjury,  if  it  had 
under  consideration  any  matter  within  its  jurisdiction,  was 
directed  against  this  defendant ;  that  it  was  a  violation  of  his 
constitutional  right  to  require  him  to  attend  before  the  grand 
jury  and  take  an  oath ;  that  said  alleged  oath  was  not  lawfully 
administered ;  that  no  indictment  for  perjury  can  be  predicated 
upon  testimony  so  obtained ;  and  that  said  indictment  so  obtained 
is  invalid  under  Section  10  of  Article  I  of  the  Constitution  of 
Ohio,  and  Section  12842  of  the  General  Code.” 

To  this  decision,  which  is  set  out  in  full  in  the  brief 
we  filed  in  this  court  on  application  for  leave,  the  prose- 


—  4  — 


cuting  attorney  excepted,  according  to  the  provisions  of 
Section  13681  of  the  General  Code. 

But  when  leave  was  sought  to  file  the  bill  of  exceptions 
in  this  court  under  the  authority  of  Sections  13681  to 
13684,  inclusive,  of  the  General  Code,  it  was  suggested 
by  counsel  for  Cox,  under  the  guise  of  friends  of  the 
court,  that  this  court  had  no  jurisdiction;  that  the  statute 
which  created  and  authorized  this  sort  of  proceedings  was 
unconstitutional  and  void. 

In  answer  to  this  contention  it  may  be  sufficient  to  say 
that  this  court  has  entertained  jurisdiction  over  pro¬ 
ceedings  such  as  this  since  the  first  case  brought  here, 
under  the  statute,  State  v.  Behimer,  in  1870,  up  to  the 
time  of  the  suggestion  by  counsel  for  Cox  on  April  16th, 
1912,  and  since  the  time  of  the  point  so  raised  by  them 
until  the  most  recently  decided  case,  of  which  we  are 
aware,  the  case  of  State  v.  Hare  and  Davis,  decided  De¬ 
cember  17,  1912 — a  period  of  42  years.  Adopting  the 
language  of  the  Franklin  Common  Pleas,  in  the  ease  of 
Boivland  v.  Wolfe,  5  Xisi  Prius  (New  Series),  170,  we 
may  say:  “In  the  first  place  it  is  to  be  observed  that 
this  law  has  been  upon  the  statute  books  of  the  state 
for  many  years,  and  although  frequently  before  the  courts 
in  cases  involving  its  construction,  apparently  the  ques¬ 
tion  of  its  constitutionality  has  never  been  raised.  After 
a  statute  has  stood  upon  the  books  for  such  a  length  of 
time  and  one  that  has  been  so  frequently  before  the 
courts  in  adjudicated  cases  and  its  constitutionality  never 
questioned,  a  court  ought  to  be  very  clear  that  it  is  in¬ 
valid  before  declaring  it  to  be  so.  No  statute  is  to  be 
declared  unconstitutional  unless  clearly  so,  and  that  is 
especially  so  in  the  case  of  a  statute  which  has  been  upon 
the  firing  line  so  long  as  the  one  now  under  consideration, 
and  escaped  unscathed.” 


—  5  — 


In  the  second  place  counsel  who  raise  the  point  “have 
been” — to  use  their  own  language — “appointed  by  the 
judge  of  the  court  of  Common  Pleas  ‘to  argue  the  case 
against  the  prosecuting  attorney’  as  provided  in  General 
Code,  Section  13682”  and  they  “appear  in  pursuance  of 
that  order.”  The  order  itself  is  on  file  with  the  papers 
in  this  court.  It  does  not  lie  in  their  months,  therefore, 

- — indeed,  it  would  be  a  violation  of  their  order  from  the 
court  below — to  deny  the  validity  of  the  statutes  under 
which  they  have  accepted  their  commission  and  appear 
here.  To  use  the  language  of  your  Honor,  Judge  Shauek, 
in  State  v.  Vail,  84  Ohio  State,  399,  at  405:  “This  case 
comes  within  the  recognized  doctrine  that  parties  may  so 
conduct  themselves  with  respect  to  the  subject  of  uncon¬ 
stitutional  legislation  that  they  are  estopped  thereafter 
to  deny  its  binding  character.”  Counsel  have  not  been 
appointed  to  tell  this  court  that  it  has  no  right  to  hear 
the  matter;  they  have  been  appointed  to  argue  the  case 
against  the  prosecuting  attorney  and  in  defense  of  the 
decision  of  the  court  below.  As  Mr.  Justice  Swavne 
says  in  Daniels  v.  Tearney,  102  United  States,  415:  “It 
is  well  settled  that  where  a  party  has  availed  himself 
for  his  benefit  of  an  unconstitutional  law,  he  can  not 
aver  its  unconstitutionality  as  a  defense.  In  such  cases 
the  principle  of  estoppel  applies  with  full  force  and  con¬ 
clusive  effect.” 

But  lastly,  as  we  have  endeavored  to  show — and  we 
think  with  success — in  our  briefs,  these  statutes  are  not 
unconstitutional;  the  authority  they  confer  and  the  duty 
they  impose  upon  the  court  is  the  exercise  of  “appellate 
jurisdiction”  within  the  meaning  of  the  constitutional 
provision:  “The  Supreme  Court  shall  have  such  appel¬ 
late  jurisdiction  as  may  be  provided  by  law.”  And  the 
question  this  Court  is  asked  to  decide  in  this  proceeding 


—  6  — 


is  not  moot;  it  lias  not  ceased  to  be  of  practical  import¬ 
ance  to  the  parties;  it  is  still  one  of  great  public  import¬ 
ance,  and  in  it  the  rights  of  the  public  (whatever  they 
are)  have  not  been  extinguished. 

The  question  ought  to  be  decided  and  the  statute  says 
this  Court  shall  decide  it. 

The  question  itself  may  be  briefly  stated  thus :  A  and 
B  while  Treasurers  of  H  County  have  deposited  with  cer¬ 
tain  banks  in  said  county  certain  portions  of  the  public 
money  received  and  held  by  them  as  such  treasurers. 
A  grand  jury  is  duly  impaneled  and  sworn  and  proceeds 
to  inquire  into  the  facts  to  determine  whether  A  and  B 
should  be  indicted  for  embezzlement  under  Section  6841, 
Revised  Statutes.  C,  President  of  the  X  Trust  Company, 
is  subpoenaed  to  appear  as  a  witness  before  that  grand 
jury.  He  appears  in  response  to  his  subpoena  and  is 
sworn  by  the  clerk  of  the  court.  He  goes  before  the 
grand  jury  and,  without  objection  or  claim  of  privilege, 
testifies  that  he  did  not  know  of,  or  have  anything  to  do 
with,  any  deposits  of  public  money  by  A  and  B  in  the  X 
Trust  Company  or  any  other  banks  of  H  County,  whereas, 
as  a  matter  of  fact  he  did  know  of,  and  took  part  in  the 
arrangements  made  in  regard  to,  deposits  of  public 
moneys  by  A  and  B  in  the  X  Trust  Company  and  other 
banks  in  H  County  and  had  knowingly  received  from 
them  a  large  part  of  the  interest  paid  by  said  banks  on 
deposits  so  made.  He  is  subsequently,  and  without  fur¬ 
ther  appearance  on  his  part,  indicted  by  another  grand 
jury  for  perjury  upon  that  false  testimony.  Can  he  es¬ 
cape  prosecution  for  perjury  on  the  ground  that  when  lie 
appeared  and  was  sworn  and  gave  testimony,  as  stated, 
his  constitutional  right  was  violated,  in  that  he  was  “com¬ 
pelled  in  a  criminal  case  to  be  a  witness  against  him¬ 
self”? 


—  7  — 


Counsel  for  Cox  contended  he  could  and  Judge  Dickson 
so  decided  and  that  too  on  a  motion  to  qnasli  the  indict¬ 
ment.  “A  motion  to  quash  may  he  made  where  there 
is  a  defect  apparent  upon  the  face  of  the  record,  includ¬ 
ing-  defects  in  the  form  of  the  indictment,  or  in  the  man¬ 
ner  in  which  an  offense  is  charged.”  But  Judge  Dickson 
bases  his  conclusion  not  upon  the  form  or  allegations  of 
the  indictment  but  upon  assumption  and  surmise.  He 
says  that  the  indictment  must  be  quashed  “  because  it 
appears  by  said  indictment:  First,  That  the  investi¬ 
gation  which  the  grand  jury  had  under  consideration  at 
the  time  the  defendant  is  alleged  to  have  committed 
perjury  was  directed  against  this  defendant.” 

Where,  we  ask,  does  it  appear  from  the  indictment  that  • 
the  investigation  which  the  grand  jury  had  under  con¬ 
sideration  at  the  time  the  defendant  is  alleged  to  have 
committed  perjury  was  directed  against  the  defendant? 
A  perusal  of  the  indictment  will  show  that  the  grand  jury 
were  investigating  unlawful  deposits,  in  banks  of  Hamil¬ 
ton  County,  by  treasurers  of  Hamilton  County  of  money 
received  by  them  as  such  in  payment  of  taxes,  in  order 
that  the  grand  jury  might  determine  whether  any  of  said 
treasurers  had  been  guilty  of  a  violation  of  Section  6841, 
Revised  Statutes,  as  it  then  stood.  The  only  possible 
way  to  make  it  out  that  the  grand  jury  were  investigating 
Cox  is  that  he  had  aided  and  abetted  the  treasurers  to 
make  illegal  deposits  and  that  the  grand  jury  either 
knew  or  suspected  that  he  had  done  so  and  were  after 
him  for  it.  But  nothing  of  the  sort  appears  upon  the 
face  of  the  indictment  or  the  record.  And  if  Cox  was 
an  aider  and  abettor  of  such  illegal  depositing,  as  Judge 
Dickson  seems  willing,  without  any  hearing,  to  conclude 
that  he  was,  can  an  aider  and  abettor  of  crime  get  im¬ 
munity  for  the  aiding  and  abetting  by  denying  his  con- 


—  8  — 


nection  therewith  in  his  testimony  before  the  grand  jury, 
and  also  immunity  for  any  perjury  he  may  commit  in 
giving  before  the  grand  jury,  without  any  objection  or 
claim  of  privilege,  his  said  testimony  of  denial!  Judge 
Dickson  is  confused  between  cases  of  criminals  being 
compelled  against  their  will. to  give  the  evidence  upon 
which  an  indictment  is  subsequently  found  against  them 
for  the  very  crime  then  under  investigation  and  cases 
of  individuals  having  some  knowledge  of  the  crime  of 
another,  through  some  participation  therein  or  connection 
therewith,  appearing  before  a  grand  jury  in  response  to 
a  subpoena  and  there  giving  testimony,  without  com¬ 
pulsion,  but  testimony  for  one  reason  or  another  in  ma¬ 
terial  respects  false. 

If  it  were  true  that  the  indictment  showed  on  its  face 
that  the  grand  jury  were  investigating  the  acts  of  Cox 
to  see  if  he  had  aided  and  abetted  the  treasurers  in  mak¬ 
ing  the  illegal  deposits,  it  does  not  show  that  he  was 
compelled  to  testify,  that  he  declined  or  refused  to  testify, 
or  claimed  his  privilege  of  refusing  to  testify  and  was, 
notwithstanding  his  protest,  compelled  to  testify.  And 
no  presumptions  in  that  regard  can  be  indulged  in  for 
on  the  motion  to  quash  we  are  concerned  only  with  defects 
apparent  on  the  face  of  the  record,  including  defects  in 
the  form  of  the  indictment  or  in  the  manner  in  which  the 
offense  is  charged.  The  case  of  Lindsey  v.  State,  69  Ohio 
State,  215,  is  in  point.  In  that  case,  in  which  your  Honor, 
Judge  Shauck,  sat  and  concurred,  this  court  held: 

Syllabus  1.  “A  plea  which  states  that  the  defendant  was  re¬ 
quired,  against  his  will,  to  take  an  oath  and  give  testimony  before 
the  grand  jury  concerning  a  case  then  being  investigated  against 
the  defendant  and  his  co-defendants  but  which  does  not  state 
how  he  was  thus  compelled  to  take  an  oath,  nor  that  he  refused 
to  take  it.  nor  that  he  claimed  his  privilege  of  refusing  to  testify, 
and  which  fails  to  show  what  he  testified  to.  or  that  his  testi¬ 
mony  was  material  concerning  any  fact  necessary  to  be  proven 


—  9 


by  the  state  to  justify  the  finding  of  an  indictment,  or  that  there 
was  not  testimony  other  than  that  of  defendant  before  the  jury 
sufficient  to  justify  such  indictment,  is  bad  on  general  demurrer.  ’  ’ 

If  this,  then,  were*  a  case  of  indictment  of  Cox  for  the 
very  crime  under  investigation  at  the  time  of  the  testi¬ 
mony  he  could  not  escape  from  the  indictment  without 
a  showing  of  the  things  enumerated  in  Lindsey  v.  State; 
and  how  then  can  he,  when  there  is  nothing  in  the  in¬ 
dictment  to  show,  or  even  indicate,  that  he  was  compelled, 
over  his  objection  and  refusal  and  claim  of  privilege,  to 
testify  before  the  grand  jury,  escape,  by  motion  to  quash, 
from  an  indictment  for  perjury  for  the  willfully  false 
statements  he  then  gratuitously  made,  on  the  pretense 
that  his  constitutional  rights  have  been  violated !  Coun¬ 
sel  for  defendant  can  cite  no  cases  in  which  a  motion  to 
quash  has  been  granted  on  such  a  ground. 

But  having  assumed  that  the  grand  jury  were  investi¬ 
gating  the  acts  of  Cox  with  a  view  to  indicting  him — 
when,  as  a  matter  of  fact,  there  was  no  charge  against 
him,  which  the  grand  jury  were  investigating  when  he 
was  called  before  them  in  1906,  nor  does  the  indictment 
allege  any  or  the  record  disclose  any — Judge  Dickson 
next  concludes  that  the  indictment  must  be  quashed  be¬ 
cause:  Second,  “It  was  a  violation  of  his  constitutional 
right  to  require  him  to  attend  before  the  grand  jury  and 
take  an  oath.” 

We  submit  that  Judge  Dickson  was  confused  by  con¬ 
founding  the  rights  of  a  party  with  the  privilege  of  an 
ordinary  witness.  In  United  States  v.  Kimball,  117 
Federal,  156,  Judge  Thomas,  of  the  Southern  District  of 
New  York,  distinguishes  the  right  of  a  defendant  to  stand 
mute  from  the  privilege  of  a  witness  to  refuse  to  answer; 
that  the  former  does  not  spring  from  the  Constitution 
but  from  the  common  law  status,  and  says:  “A  person 


—  10  — 


can  not  be  regarded  as  a  defendant,  so  as  to  render  him 
sncli  an  incompetent  witness  until  some  process  is  di¬ 
rected  against  him,  that  is,  until  he  is  selected  by  some 
judicial  method  as  a  subject  of  accusation.”  Cox  had 
not  been  so  selected.;  he  was  not  an  accused  in  any  sense 
of  the  word;  he  was  called  as  an  ordinary  witness  before 
a  grand  jury  making  a  general  investigation  in  regard 
to  the  public  funds  of  the  county. 

In  this  connection  we  wish  to  direct  the  court’s  atten¬ 
tion  to  the  language  of  Judge  Hough  in  United  States 
v.  Price  and  Haas,  163  Federal,  904,  at  906: 

“The  constitutional  provision  is  but  the  affirmance  of  the  com¬ 
mon  law  maxim  ‘ Nemo  tenetur  seipsum  accusare.’  It  can  not  be 
understood  without  knowledge  of  the  common  law  rule,  and  is  to 
be  interpreted  thereby.  It  is  intended  solely  to  prevent  dis¬ 
closures  by  persons  acting  as  witnesses  in  any  investigation  and 
has  no  logical  or  historical  relation  to  the  rights  of  parties  as 
such.  *  #  *  The  immunity  of  a  party  in  a  criminal  case 

rests  likewise  upon  a  rule  of  common  law,  long  antedating  the 
Constitution,  and  quite  different  from  the  rule  regarding  self- 
accusation,  viz :  the  exclusion  from  the  witness  stand  of  all  parties 
to  the  record  because  their  interest  was  thought  to  be  so  great  as 
to  render  them  unworthy  of  belief.  This  rule  was  not  changed 
by  the  Constitution  and  existed  in  full  force  in  most  English 
speaking  courts  until  almost  within  the  memory  of  men  still 
living.  The  constitutional  provision  is  therefore,  as  said  by 
Professor  Wigmore,  in  his  illuminating  discussion  of  the  subject, 
‘An  option  of  refusal,  and  not  a  prohibition  of  inquiry.’  Wig- 
more  on  Evidence,  Section  2268.” 

That  case  was  a  prosecution  arising  out  of  an  investi¬ 
gation  of  the  so-called  “cotton  leak”  before  a  Federal 
grand  jury  in  the  city  of  New  York  and  in  it  Judge 
Hough  of  the  Circuit  Court  of  the  Southern  District  of 
New  York,  sitting  as  a  District  Judge,  denying  a  motion 
to  quash  the  indictment,  made  upon  the  same  grounds  as 
the  one  in  the  case  at  bar,  said:  “The  real  and  only 
questions  raised  by  the  motions  to  quash  are  narrow  but 
important  matters  of  law;  i.  e.,  were  these  defendants  (1) 


—  11  — 


compelled  to  be  witnesses  against  themselves  (2)  in  a 
criminal  case?”  Answering  the  second  query  he  says: 
“The  true  doctrine  established  by  national  courts  of 
controlling  authority  is  that  the  submission  of  an  indict¬ 
ment  to  a  grand  jury  and  the  examination  of  witnesses 
before  them  in  relation  to  the  same  are  ‘no  part  of  crim¬ 
inal  proceedings  against  the  accused,  but  are  merely  to 
assist  the  grand  jury  in  determining  whether  such  pro¬ 
ceedings  shall  be  commenced.’  Price  and  Haas  were 
not  parties,  but  as  witnesses  claim  a  party’s  statutory 
(not  constitutional)  privilege.  Regarding  these  men  as 
witnesses  only,  it  is  settled  law  that  no  right  either  con¬ 
stitutional  or  statutory  was  infringed  by  compelling 
their  attendance  and  administering  the  oath.” 

A  person  does  not  become  “a  witness  against  himself” 
by  merely  being  subpoenaed  to  appear  before  a  grand 
jury.  In  United  States  v.  Kimball ,  already  referred  to, 
Judge  Thomas  first  answered  the  claim  that  Kimball  and 
the  others  were  defendants  as  follows:  “That  a  person 
not  even  the  subject  of  a  complaint  is  a  defendant  is  the 
merest  chimera.”  Continuing,  he  said,  on  page  162: 
“Returning,  now  to  the  first  general  proposition,  for 
which  the  defendants  contend” — “that  an  obeyed  sum¬ 
mons  to  the  defendants  to  appear  before  the  grand  jury, 
and  consequent  evidence  touching  matters  thereafter 
charged  in  an  indictment  against  them  violated  the  con¬ 
stitutional  provision  that  no  person  ‘shall  be  compelled 
in  a  criminal  case  to  be  a  witness  against  himself’  ” — 
“it  will  be  found  that  the  defendants  seek  in  effect  to 
establish  that  under  the  constitutional  provision  no  per¬ 
son,  except  upon  his  own  request,  is  a  competent  witness 
before  a  grand  jury  touching  matters  made  the  subject 
of  an  indictment  against  him  by  such  grand  jury;  that  is, 
an  indictment  found  by  a  grand  jury  is  illegal,  if  the 


—  12  — 


person  charged  in  it  attended  before  the  grand  jury  pur¬ 
suant  to  subpoena,  and,  even  without  objection,  gave 
material  evidence,  especially  if  he  were  not  warned  or 
enabled  to  know  that  inquiry  might  bring  him  into  jeop¬ 
ardy.  The  United  States  attorney  tersely  interprets  the 
defendant’s  construction  of  the  constitutional  provision, 
as  follows: 

“(1)-  It  would  mean  that  the  grand  jury  as  an  inquiring 
body  has  no  right  to  issue  its  process  to  any  person  who  might 
know  or  have  knowledge  concerning  any  crime  to  be  investigated, 
if  there  should  be  any  chance  that  the  person  so  subpoenaed 
might  in  any  way  become  criminally  involved  in  the  crime  under 
investigation,  and  therefore  subject  to  an  indictment,  and  would 
entail  upon  that  body  the  impossibility  of  ascertaining,  in  ad¬ 
vance,  whether  there  could  be  any  chance  of  the  witnesses’  cul¬ 
pability  becoming  apparent.  (2)  It  would  mean  that  an  in¬ 
dictment  would  be  invalid  if  the  person  against  whom  it  was 
found  had  been  subpoenaed  to  appear  before  the  grand  jury, 
had  appeared,  and  had  been  interrogated  concerning  the  partici¬ 
pation  of  any  other  person  in  the  charge.  (3)  It  would  abso¬ 
lutely  destroy  the  usefulness  of  a  grand  jury  to  inquire  into 
crimes  generally,  or  into  violations  that  have  been  brought  to 
their  notice,  other  than  cases  that  had  been  held  for  the  grand 
jury  by  the  respective  committing  magistrates.  (4)  It  would 
mean  that  the  compulsion  denounced  in  the  constitutional  amend¬ 
ment  begins  the  moment  the  process  of  the  grand  jury  is  actually 
served  upon  the  party  to  whom  it  is  directed,  provided  he  is  in 
any  way  connected  with  the  event.” 

Answering  this  contention  lie  says  on  page  163:  “It 
is  not  infringement  of  constitutional  provision  to  sub¬ 
poena  a  person  before  a  grand  jury  and  to  administer  to 
him  the  usual  oath.  The  defendants  correctly  state:  ‘It 
is  well  settled  that  a  witness  can  not  claim  his  constitu¬ 
tional  privilege  until  he  is  sworn.  He  must  take  the 
oath,  so  that  his  assertion  of  privilege  shall  be  made 
under  that  sanction.’  If  a  person  can  not  claim  his 
privilege  until  he  has  been  sworn,  it  logically  follows 
that  the  constitutional  provision  can  not  until  that  time 
be  violated.  It  can  not  be  violated  before  it  can  be  in- 


—  13 


yoked  for  his  protection;  hence  the  conclusion  is  that 
compulsion,  within  the  meaning  of  the  Constitution,  does 
not  arise  from  mere  summoning  and  swearing  the  wit¬ 
ness.” 

In  addition  to  the  two  reasons  we  have  thus  far  dis¬ 
cussed  Judge  Dickson  decided  further  that  the  indict¬ 
ment  must  be  quashed  because:  Third,  “The  alleged 
oath  was  not  lawfully  administered.”  Fourth,  “No  in¬ 
dictment  can  he  predicated  upon  testimony  so  obtained,  ’  ’ 
and  Fifth,  “The  indictment  is  invalid  under  Section  10 
of  Article  I  of  the  Constitution  of  Ohio.”  We  will  take 
up  these  grounds  briefly  and  in  order. 

There  is  absolutely  nothing  to  show  that  the  oath 
averred  was  not  lawfully  administered.  The  oath  averred 
was  the  required  legal  oath  according  to  Section  7199, 
Revised  Statutes,  now  Section  13564,  General  Code.  Af¬ 
ter  he  was  sworn,  if  he  was  afraid  the  testimony  he  would 
give  might  tend  to  incriminate  him,  he  could  have  de¬ 
clined  to  answer.  If  he  did  not  avail  himself  of  his 
privilege  he  waived  it  and  was  subject  to  the  same  rules 
and  obligations  as  any  other  witness.  And  if  he  gave 
false  testimony  he  was  indictable  for  perjury.  As  Mr. 
McClain  says  in  his  work  on  criminal  law,  Section  865: 

“If  a  witness  could  have  interposed  an  objection  to  being 
called  to  testify  in  the  matter,  but  waived  it,  perjury  may  be 
predicated  upon  his  false  answer.” 

And  Bishop,  Section  1019 : 

“The  witness,  to  be  capable  of  perjury,  need  not  be 
brought  into  court  by  subpoena,  or  be  otherwise  com¬ 
pellable  to  testify ;  and  it  is  immaterial  whether  he  pro¬ 
ceeds  reluctantly  or  voluntarily.  Even  though  a  witness  is 
in  law  incompetent,  if  in  fact  the  court  admits  him,  he  commits 
perjury  when  what  he  testifies  to  is  false.  So  that,  for  example, 
whether  a  statute  has  made  parties  witnesses  in  their  own  causes 
or  not,  it  is  perjury  for  one  to  swear  falsely  for  himself  in  a 
matter  duly  pending.  So  though  a  question  to  a  witness  is  one 


—  14  — 


which  he  may  lawfully  decline  to  answer,  as  where  it  requires 
him  to  criminate  himself,  still  by  voluntarily  answering  it  falsely 
he  commits  perjury.” 

The  rule  is  well  stated  in  the  case  of  Mackin  v.  The 
People,  115  Illinois,  312,  Syllabus  3: 

“If  the  answers  of  a  witness  to  questions  put  to  him  by  a 
grand  jury,  would  have  the  effect  of  disclosing  criminal  conduct 
on  his  part,  he  may  claim  his  privilege  and  decline  to  answer,  and 
his  refusal  can  not  form  the  basis  of  any  prosecution  against  him ; 
but  if  he  does  not  avail  of  his  privilege,  and  submits  to  answer, 
he  must  testify  with  as  much  truth  and  candor  as  in  other  cases; 
and  if  his  testimony  is  willfully  false,  perjury  may  be  assigned 
upon  it.” 

In  that  case  Mackin  was  indicted  for  perjury  for  cer¬ 
tain  testimony  given  by  him  before  a  grand  jury  in¬ 
vestigating  election  frauds.  He  had  been  asked  in  re¬ 
gard  to  the  printing  and  delivery  of  certain  spurious 
ballots  used  in  the  election.  He  denied  having  procured 
the  printing  or  having  received  the  package  of  ballots. 
On  page  320  Judge  Scott  said: 

“Complaint  is  made  that  defendant  was  asked  the  direct  ques¬ 
tion  whether  he  ordered  the  spurious  ballots,  and  whether  he 
received  them  after  they  had  been  engraved  and  printed.  Doubt¬ 
less  the  same  questions  in  substance  were  asked  of  the  printers 
and  the  engraver,  all  of  whom  answered  without  hesitation  what 
connection  they  had  with  them.  Had  defendant  been  guiltless 
of  any  criminal  use  to  be  made  of  such  spurious  ballots  there¬ 
after,  he  could  have  answered  as  freely  as  did  the  other  witnesses, 
and  no  one  would  have  pretended  any  charge  against  him  was 
being  inquired  into  by  the  grand  jury.  Assuming  the  answers 
to  the  questions  propounded  to  defendant  would  have  disclosed 
criminal  conduct  on  his  part,  it  was  his  privilege  to  decline  to 
answer,  and  his  refusal  could  not  have  been  made  the  basis  of 
any  prosecution  against  him.  Of  course  no  one  can  be  com¬ 
pelled  to  give  evidence  against  himself,  and  the  law  secures  to 
every  one  when  testifying  in  any  legal  proceeding,  whether  be¬ 
fore  the  grand  jury  or  in  the  trial  court,  the  privilege  to  answer 
or  to  decline  to  answer,  if,  in  his  opinion,  the  answers  to  the 
questions  would  tend  to  disclose  matters  that  might  criminate 
him.  The  privilege  secured  is,  however,  a  personal  one,  and  if  he 
shall  waive  it,  and  elect  to  testify,  he  must  do  so  with  as  much 


V 


—  15 


truth  and  candor  as  if  testifying  concerning  other  matters  as  to 
which  he  is  bound  to  answer,  and  if  his  testimony  is  willfully 
false,  perjury  may  be  assigned  upon  it.  ’  ’ 

The  principle  of  law  is  well  settled  by  an  abundance  of 
cases,  a  few  of  which  we  have  cited  in  our  briefs.  In 
United  States  v.  Bell,  81  Federal,  830,  Judge  Hammond, 
on  pages  850  and  851  says: 

“It  must  be  conceded  to  the  district  attorney  that  it  has  been 
repeatedly  and  quite  uniformly  decided  everywhere,  under  many 
varying  conditions  of  fact,  that  where  one  who  is  incompetent  as  a 
witness,  or  for  any  reason  is  not  subject  to  examination,  is  never¬ 
theless  compelled  to  testify,  or  does  in  fact  testify,  he  must  tell 
the  truth,  and  perjury  may  be  prosecuted  against  him  if  he  does 
not.” 

The  indictment  is  not  invalid  under  Section  10  of  Ar¬ 
ticle  I  of  the  Constitution  of  Ohio.  Section  10  of  Article 
I  provides  that  “no  person  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself.”  It  does 
not  provide,  however,  either  expressly  or  by  implication 
that  a  person  can  go  forward  and,  without  objection, 
give  false  testimony  in  a  criminal  case,  directly  or  indi¬ 
rectly  concerning  himself,  with  impunity.  As  the  Chief 
Justice  of  the  Supreme  Court  of  the  United  States  says 
in  Glickstein  v.  United  States,  222  United  States,  139,  at 
142,  “the  immunity  afforded  by  the  constitutional  guar¬ 
antee  relates  to  the  past  and  does  not  endow  the  person 
who  testifies  with  a  license  to  commit  perjury.” 

Judge  Thomas  of  the  Circuit  Court  of  the  Southern 
District  of  New  York  in  the  case,  already  cited,  of  United 
States  v.  Kimball,  speaking  of  the  provision  of  the  Fifth 
Amendment  of  the  Constitution  of  the  United  States, 
which  is  identically  the  same  as  that  in  our  Section  10, 
Article  I,  says  on  page  163: 

“The  provision  means  that  no  person  shall  be  forced  to  be  a 
witness  against  himself  against  his  free  will.  This  does  not 


—  16  — 


mean  that  he  could  not  testify.  It  does  not  mean  that  any  per¬ 
son  may  not  be  called  and  sworn  (barring  persons  under  known 
legal  disability).  It  is  an  exception  that  leaves  all  persons  com¬ 
petent  to  be  witnesses,  subject  to  a  call  to  testify,  but  enables 
any  of  such  persons  to  exempt  himself  from  the  whole  class  by 
pleading  that  certain  evidence  which  he  is  called  upon  to  give 
will  tend  to  show  that  he  has  committed  an  offense.  Hence  those 
competent  and  free-willed  to  do  so  may  give  evidence  against  the 
whole  world,  themselves  included;  but  those  unwilling  may  not 
be  coerced,  if  it  appear  that  unwillingness  arises  from  incrimi¬ 
nating  evidence  which  they  are  asked  to  give.  But  willingness  or 
unwillingness  is  subjective  .and  may  be  known  alone  by  act, 
conduct,  speech  or  perhaps,  in  extreme  cases,  by  condition.  Un¬ 
less  the  witness  exhibit  bis  unwillingness  in  some  manner,  it  can 
not  be  presumed  to  exist.  This  is  especially  true,  if  his  conduct 
be  that  of  a  man  untrammeled,  if  he  be  free  from  bodily  restraint 
or  physical  duress,  unterrified  by  menace,  and  uninfluenced  by 
cajolery  or  fraud.  Presumptively  the  person  summoned  belongs 
to  the  general  body  of  citizens,  competent  to  testify,  and  so  he  may 
be  considered.  If  he  elect  to  be  excepted  from  this  class  he  must 
speak,  or  his  condition  or  relation  to  the  proceeding  must  speak 
for  him ;  for  exceptions  are  allowed  only  to  those  who  ask  for 
them.” 

No  unwillingness  or  compulsion  of  any  sort  whatsoever 
is  apparent  on  the  face  of  the  record  or  the  indictment 
here.  As  a  matter  of  law  and  of  fact  there  was  none. 

All  of  the  cases  cited  by  counsel  for  defendant  and 
quoted  by  the  court  below  in  support  of  its  decision, 
except  People  v.  Gillette  and  United  States  v.  Bell,  are 
cases  of  indictments  for  other  offenses  than  perjury  which 
have  been  secured  by  compelling  the  defendants  charged 
thereunder  to  appear  before  the  grand  jury  and  testify 
against  themselves,  incriminating  themselves  of  the  very 
charge  under  investigation  and  for  which  the  indictments 
are  returned.  These  indictments  are  held  to  be  obtained 
by  illegal  evidence.  The  cases  are  not  in  point  here  and 
indeed  it  is  very  doubtful  if  they  would  have  any  appli¬ 
cation  at  all  in  Ohio.  If  such  matters  could  be  presented 
they  would  have  to  be  presented  under  a  plea  in  abate- 


\ 


—  17 


ment — as  a  “  defect  in  the  record,”  “shown  by  facts 
extrinsic  thereto” — as  was  done  in  the  Lindsey  case,  69 
Ohio  State,  215.  And  the  attitude  of  this  court  on  the 
question  is  revealed  in  that  case.  It  is  not  in  accord  with 
the  authorities  cited  by  court  and  counsel  for  Cox.  I 
will  not  read  but  only  direct  the  attention  of  the  Court 
to  the  language  of  Judge  Spear  on  page  222. 

In  the  cases  of  People  v.  Gillette  (111  New  York  Sup¬ 
plement,  133),  and  United  States  v.  Bell  (81  Federal, 
830)  the  indictments  were  not  disposed  of  on  motions  to 
quash. 

In  People  v.  Gillette,  a  trial  had  been  had  and  defend¬ 
ant  found  guilty  when  the  matter  was  discussed.  And 
the  matter  upon  which  the  charge  of  perjury  was  predi¬ 
cated  in  that  case  was  the  answer  of  the  defendant  before 
a  grand  jury,  inquiring  to  ascertain  whether  an  insurance 
company,  of  which  accused  was  an  officer,  had  violated 
the  criminal  laws  relating  to  insurance  companies,  to  a 
question  as  to  what  a  certain  account  in  a  bank  at  Dobb ’s 
Ferry  was.  He  said  that  it  was  his  personal  account  and 
that  the  money  there  deposited  came  from  his  personal 
account;  he  went  on  to  explain,  however,  that  he  had 
from  time  to  time  received  various  amounts  of  cash  from 
certain  officers  of  the  insurance  company  to  be  used  for 
confidential  purposes  in  the  interest  of  the  company;  that 
the  money  was  deposited  in  the  Dobb’s  Ferry  Bank  in 
the  account  referred  to,  and  that  the  money,  in  fact,  be¬ 
longed  to  the  insurance  company  and  that  he  had  for 
some  time  endeavored  to  return  it.  And  the  decision  of 
the  court,  after  a  trial  on  the  merits,  was — as  the  head- 
notes  show — First,  That  this  evidence  was  insufficient 
to  show  that  the  testimony  given,  when  considered  as  a 
whole  was  wilfully  and  corruptly  false,  and  Second,  That 
the  witness  could  not  be  convicted  of  perjury  for  false 


— 18  — 


testimony  which  he  immediately  thereafter  fully  ex¬ 
plained  so  that  the  whole  constituted  a  truthful  state¬ 
ment  of  fact. 

These  two  grounds  are  the  last  two  grounds  stated  by 
Judge  McLaughlin;  the  language  on  pages  135  and  136 
from  which  Judge  Dickson  quotes,  is  the  mere  notion  of 
McLaughlin  and  Ingraham.  It  was  not  concurred  in  by 
the  other  three  judges  of  the  court  and  is  therefore  pure 
dictum.  And  the  reasoning  of  Judge  McLaughlin  in  this 
respect  is  thus  characterized  by  Judge  Hough  in  United 
States  v.  Price  and  Haas:  “The  constitutional  view, 
which  by  confounding  the  privilege  of  a  witness  with  the 
rights  of  a  party  (or  to  speak  more  accurately  the  ex¬ 
clusion  of  a  party)  makes  a  suspect  a  person  sacrosanct.” 
Of  this  he  says:  “The  extent  and  nature  thereof  is  re¬ 
viewed  in  People  v.  Gillette ,  111  New  York  Supplement, 
133,  and  from  the  reasoning  of  that  case  I  respectfully 
dissent.” 

In  the  case  of  United  States  v.  Bell,  the  matter  did 
not  come  up  until  the  trial.  It  arose  on  a  question  as  to 
the  admissability  of  evidence.  The  court  held  that  the 
affidavit  of  the  defendant  Bell  which  had  been  secured 
by  the  Pension  Examiner,  by  a  private  examination  in 
his  office,  was  not  admissable  because  it  had  been  secured 
in  violation  of  defendant’s  constitutional  rights  as  re¬ 
vealed  by  the  evidence  The  court  excluded  the  evidence, 
the  government  consequently  failed  to  prove  a  case  and  a 
verdict  of  acquittal  was  directed.  This  is  a  very  differ¬ 
ent  thing  than  quashing  an  indictment  on  a  mere  pre¬ 
tense,  a  figment  of  the  brain  of  counsel,  a  legal  bugaboo 
intended  to  frighten  and  alarm,  but  without  any  basis 
in  fact  whatsoever.  The  Bell  case  falls  within  the  rule 
expressed  by  Judge  Thomas  in  United  States  v.  Kimball 
that,  “willingness  or  unwillingness  is  subjective,  and 


—  19  — 


may  be  known  alone  by  act,  conduct,  speech,  or  perhaps, 
in  extreme  cases  by  condition.”  For  on  pages  850  and 
851,  Judge  Hammond  says: 

“It  must  be  conceded  to  the  district  attorney  that  it  has  been 
repeatedly  and  quite  uniformly  decided  everywhere,  under 
many  varying  conditions  of  fact,  that  where  one  who  is  incom¬ 
petent  as  a  witness,  or  for  any  reason  is  not  subject  to  examina¬ 
tion,  is  nevertheless  compelled  to  testify  or  does  in  fact  testify, 
he  must  tell  the  truth,  and  perjury  may  be  prosecuted  against 
him  if  he  does  not.  But  this  principle  and  these  cases  are  all 
answered  by  the  peculiar  circumstances  in  this  case, which  we 
find  conclusive  of  the  fact  that  this  untutored,  uninformed,  un¬ 
warned  and  unconscious  negro  did  not  waive  his  privilege  and 
constitutional  right,  and  was  answering  under  a  compulsion  as 
potential  for  him  as  if  he  had  been  under  physical,  as  he  was 
under  mental  duress.” 

We  do  not  believe  it  will  be  contended  that  Cox — then 
“Boss”  of  Hamilton  County — who  had  selected  and  put 
in  office  the  sheriff  who  served  the  subpoena,  the 
clerk  who  administered  the  oath,  and  the  very  prosecu- 
ing  attorney  who  interrogated  him  before  the  grand  jury, 
should  be  considered  as  in  the  same  class  and  condition 
as  the  defendant,  Bell,  who  is  described  by  Judge  Ham¬ 
mond,  in  that  case  as  “an  ignorant  negro  man.”  “ac¬ 
customed  to  obedience  to  white  men,  and  particularly 
obedience  to  those  having  or  assuming  authority  over 
him  to  command,”  and  who  “does  not  have  the  appear¬ 
ance  or  demeanor  of  a  self-assertive  and  aggressive  man, 
and  is  not  a  person  who  would  be  likely  to  protect  him¬ 
self  by  assertiveness  and  aggressiveness,  without  being 
sustained  by  the  advice  of  others,”  and  who  “brought 
before  an  official  for  whom  naturally  he  must  have  great 
regard  in  respect  to  his  authority,  is  taken  into  the  office 
of  the  official,  which,  while  it  is  a  public  office,  is  not  an 
open  court,  but  more  like  a  private  corner;  and  separate 
and  apart  from  all  the  world,  with  only  those  two,  he  is 


—  20  — 


subjected  to  a  close,  presumably  artful,  and  necessarily 
an  inquisitorial  examination.” 

Judge  Hammond  does  not  disagree  with  nor  dispute  the 
general  rule.  On  page  840,  he  says: 

‘‘To  avoid  all  misapprehension,  it  may  be  stated  once  for  all 
that  if  a  citizen  fully  cognizant  of  his  privilege  abandons  it  under 
compulsion  or  otherwise,  and  essays  to  speak  under  oath  before 
an  authorized  officer,  he  must  speak  the  truth,  and  may  be  prose¬ 
cuted  for  perjury  if  he  does  not.” 

Such  we  may  say  of  Cox.  If  an  indictment  for  perjury 
does  not  lie  against  George  B.  Cox  for  the  wilfully  false 
statements  he  made  before  the  grand  jury  in  1906  it  will 
be  because  we  have  adopted  and  applied  to  this  case  and 
in  this  country  that  doctrine  of  the  English  Common 
Law,  “The  King  can  do  no  wrong”;  and  not  because  of 
any  provision  of  the  Constitution  of  the  State  of  Ohio  or 
the  Constitution  of  the  United  States. 

We  respectively  submit  that  the  Court  of  Common 
Pleas  erred  in  granting  the  amended  motion  to  quash  and 
that  the  exceptions  of  the  Prosecuting  Attorney  of  Hamil¬ 
ton  County  to  that  decision  should  be  sustained. 


Trials. 


L65824 


vol .16. 


ISSUED  TO 


/.  6  /T; z-  ^ 


